293 P.3d 81
Colo. Ct. App.2011Background
- Wallin was convicted of second degree assault in January 2004.
- In April 2008 Wallin filed a complaint alleging malpractice and negligence by trial counsel McCabe and McDermott.
- In July 2009 Wallin sought multiple relief items, including appointment of counsel, an expert, and stays; the trial court denied these motions.
- Also in July 2009 McCabe and McDermott moved to dismiss and sought attorney fees; the trial court dismissed Wallin's claims on multiple bases including CGIA immunity and statute of limitations.
- On January 17, 2010 the trial court entered judgment awarding attorney fees to McCabe and McDermott.
- Wallin appealed, and the Colorado Court of Appeals affirmed the trial court’s rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Notice of claim requirement | Wallin argues CGIA notice not required for his claims. | McCabe/McDermott contend public defenders are public employees and CGIA applies, requiring notice. | Trial court correct; notice required; lack of notice bars jurisdiction |
| Declaratory judgment recovery | Wallin seeks declaratory relief intertwined with tort claims. | CGIA applicable; no contract/statute basis; relief improper. | Declaratory relief properly denied; claims could be resolved as torts under CGIA |
| Attorney fees | Wallin challenges fee award; defendants did not incur fees and are not automatic state employees. | CGIA dismissal under Rule 12(b) supports fee shift; fees may be awarded even if not incurred. | Fees awarded properly; dismissal under 12(b) supports fee recovery; status as state employees affirmed |
| Stay of proceedings | Wallin seeks a stay pending postconviction resolution. | No demonstrated hardship; stay discretionary and not warranted. | Denial of stay not an abuse of discretion |
Key Cases Cited
- Jefferson Cnty. Health Servs. Ass'n v. Feeney, 974 P.2d 1001 (Colo.1998) (notice requirements confer subject matter jurisdiction under CGIA)
- City & County of Denver v. Desert Truck Sales, Inc., 837 P.2d 759 (Colo.1992) (CGIA applies to tort claims; could be asserted as torts)
- Smith v. Town of Snowmass Village, 919 P.2d 868 (Colo.App.1996) (fee awards under Rule 12(b) dismissal are proper)
- Krystkowiak v. W.O. Brisben Cos., 90 P.3d 859 (Colo.2004) (trial court may award fees when dismissal occurs under Rule 12(b))
- In re Marriage of Swink, 807 P.2d 1245 (Colo.App.1991) (pro bono attorney fees may be awarded when appropriate)
- Ferrel v. Colorado Dep't of Corr., 179 P.3d 178 (Colo.App.2007) (government defense fees after CGIA dismissal; appellate entitlement)
- Aztec Minerals Corp. v. State, 987 P.2d 895 (Colo.App.1999) (state defendants may receive statutory attorney fees under CGIA)
- City of Black Hawk v. Ficke, 215 P.3d 1129 (Colo.App.2008) (standard for reviewing attorney fee awards)